'Kill list': Is counterterrorism tactic against Anwar al-Awlaki illegal?

A US court has an opportunity to consider that question in a lawsuit brought on behalf of the American-born cleric by the ACLU and Anwar al-Awlaki's father.

SITE Intelligence Group/AP
In this image taken from video on Nov. 8, Anwar al-Awlaki speaks in a video message posted on radical websites.

Anwar al-Awlaki is a frail and bespectacled Muslim scholar who looks more like a nerdy accountant than a ruthless terrorist aligned with Al Qaeda.

In recent years, the cleric has used the Web as a platform to spread a militant version of Islam to young, alienated Muslims in the West. A dual US-Yemeni citizen, born in New Mexico and educated in Colorado, Mr. Awlaki not only speaks perfect English, but he also understands how to tailor his message to impressionable minds in America.

To the US government, that makes him a very dangerous man.

Awlaki had already achieved a measure of fame on certain extremist Muslim websites. His stature shot even higher when US counterterrorism officials listed him as a “specially designated global terrorist” and word was leaked that he was on a secret US “kill list.”

Now, Awlaki is at the center of a debate over the legality of the Obama administration’s increasing use of targeted killing as a tool of counterterrorism.

The most visible manifestation of this policy is the escalating number of drone-based missile attacks in Afghanistan and Pakistan. Some critics are concerned that a lethal operation against Awlaki, a US citizen in Yemen, would open the door to lethal attacks elsewhere in the world – including attacks targeting other US citizens.

In what could become a major showdown in the courts, the American Civil Liberties Union and the Center for Constitutional Rights are asking a federal judge in Washington to examine whether the government’s alleged “kill list” program is a form of illegal assassination or a justified use of lethal force in national self-defense.

At a hearing in federal court Nov. 8, a lawyer with the ACLU accused the Obama administration of “imposing the death penalty without trial.”

Jameel Jaffer warned district Judge John Bates that if he accepted the government’s arguments to immediately dismiss the case, “the president will have the unreviewable authority to order the assassination of any citizen of the United States.”

Mr. Jaffer added: “It is a question the president alone will decide.”

A Justice Department lawyer rejected that charge. “It is ridiculous to say that our argument leads to the conclusion that the president can assassinate who he wants,” said Douglas Letter, the administration’s terrorism litigation counsel.

The comments came at a hearing over the US motion to dismiss the suit. The posture of the case is unusual. The plaintiff is Awlaki’s father, Nasser, who lives in Yem­en and is suing on behalf of his son. The ACLU and the CCR represent the father.

The government is urging Judge Bates to throw the case out on grounds that the father lacks legal standing. If Awlaki wants to wage a court fight against the US government, Mr. Letter says, he can turn himself in to authorities.

If the case survives the dismissal motion, the judge would then take up the broader question of whether the Obama administration’s plan to kill Awlaki violates constitutional safeguards and international law.

One unresolved question the litigation raises is how much evidence the US government must compile to justify the targeted killing of an American citizen.

In a court filing, the director of national intelligence, James Clapper, said Awlaki is a leader of the Yemen-based group Al Qaeda in the Arabian Peninsula (AQAP). He said Awlaki pledged an oath of loyalty to the group’s leader, helped recruit new members, and helped focus the group’s attention on attacking US interests.

“Since late 2009, [Awlaki] has taken on an increasingly operational role in AQAP,” Mr. Clapper said.

The only specific link to a terrorist attack mentioned in the Clapper affidavit is the Christmas Day attempt to detonate a bomb on a jetliner near Detroit. Clapper said Awlaki prepared and instructed the would-be bomber.

The file also includes a copy of an article Awlaki is said to have written in a magazine sponsored by AQAP. Awlaki uses the article to urge Muslims to counter what he says is blasphemy against the prophet Muhammad. He denounced a Seattle illustrator who organized an “Everybody Draw Muhammad Day” event on Facebook.

“She should be taken as a prime target of assassination along with others who participated in her campaign,” Awlaki advised.

Efforts to uphold free-speech protections, he said, show that the entire Western political system is engaged in blasphemy. “Assassinations, bombings, and acts of arson are all legitimate forms of revenge against a system that relishes the sacrilege of Islam in the name of freedom,” Awlaki wrote.

In its lawsuit, the ACLU argues that the Obama administration is violating the constitutional requirement that US citizens be free from unreasonable seizures by the government and that citizens may not be deprived of life or liberty without receiving the due process of law. It also argues that lethal operations outside an active war zone may take place only as a last resort to prevent an imminent threat to public safety.

The existence of a “kill list” does not suggest an imminent threat that can be neutralized only through immediate use of lethal force, the ACLU lawyers say.

In defense of the targeted kill operations, government lawyers say Congress authorized the use of all “necessary and appropriate” force against Al Qaeda and associated groups.

State Department legal adviser Harold Koh outlined the administration’s legal posture in a speech in March.

“Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us,” he said. “Thus, in this ongoing armed conflict, the United States has the authority under international law … to use force, including lethal force, to defend itself.”

Mr. Koh said the use of drones to conduct lethal attacks without offering prior due process to targeted individuals does not constitute assassination or unlawful extrajudicial killing. “A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force,” he said in the speech.

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